The Constitutionality Of Legal Interpretation

It is obliged for the sanctity of the Constitution to be protected; it is only meaningful for the Constitution to be imposed; it is necessary for the legal system to be unchanged; it is essential for the law to be expounded by the Constitution. The USA, as an example of the UK-US legal system, considers it as part of explanation of the Constitution, and one the contrary, Germany, as an example of the continental legal system, largely regards it as part of explanation of the law. According to the author, the law that fulfills the requirement of the Constitution is to be explained by the Constitution on the one hand, and by the law on the other. The two sets of explanation are related but essentially different. Briefly speaking, if a common judge from a common court explains a common case on the basis of the Constitution, it is an explanation of the law; if a constitutional judge from a constitutional court explains a constitutional case on the basis of the Constitution, it is of the Constitution. Therefore, it can be distinguished if the difference among the proper court, the proper judge and the proper case is to be mastered.There doesn't exist a constitutional court, neither does a constitutional case, and none of the judges is entitled to the right of constitutional explanation. Under such a constitutional and political system, the value of the Constitution can be appreciated through being applied into legislation. Important as it obviously is, it still is not enough. Thus, how to apply the basic right of the Constitution and this core value is the very issue that has attracted the theoretical and practical fields and is hard to solve. While, to the delight of everyone, some typical case has appeared in China in which the judge explained the law with the Constitution, and scholars in this field has proved and analyzed this case. Therefore, it is theoretically and practically meaningful to research on the constitutional explanation and indispensible to govern the country in consistence with the law. It is also the intention and major content of this article. This research focuses on related issue of legal explanation based on the Constitution, and hopes to contribute to the development and the boost of the theoretical constitutional legal explanation. This article contains five aspects:First, this article discusses the position and the character of constitutional legal explanation; and summarizes the independent position of constitutional legal explanation and concludes the detailed characters. The author not only admits the independent position of the constitutional legal explanation but also thinks the constitutional legal explanation has both the characters of constitutional explanation and legal explanation. This article only focuses on the character of legal explanation.Secondly, this article describes the development process of constitutional explanation in detail through the typical cases of typical countries in either the continental legal system or the UK-US legal system, hoping to contribute the whole picture of the evolution of constitutional legal explanation.Thirdly, this article summarizes the conception basis, from the principle of proper function, legislation being respected, unifying the law and the governing, the unchanging of law and the double characters of common rights, hoping it to be thorough.Fourthly, this article explicates the use of constitutional legal explanation, and shows the problems that appears in the use of constitutional legal explanation, from three aspects, Resolution rules-- Conflict rules, civil cases,criminal cases,The Specific practice of Administrative Cases, Overstepping legislative powers,Misinterpreted the legislative intent,Violation of fundamental rights,Escape declared unconstitutionalfour shortcomings.Finally, this article reflects the paperwork regulations and practices, and explicates that the preface of our Constitution can act as the law, the judge has the constitutional obligation of realizing the value of the Constitution and protecting the common rights of the Constitution. In the process, the judge certainly can explain the law and convey a constitutional legal explanation. It also dissects the cases such as Not responsible for injuries and company limiting employees'freedom, hoping to offer a new prospect for the judicial authority realizing the value of the Constitution and protecting common rights.